Brought to you by the attorneys at

With a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.

It’s late November. Time to start thinking about Thanksgiving! I’m a Yankee. I grew up in New York, and not the upstate, rugged, nature-loving part of the state. No, I grew up near New York City, the concrete-loving, keep-trees-in-their-place part. So, I don’t quite understand the joy, the pride, the utter elation that some in my adopted hometown of Greenville, South Carolina feel when they shoot and kill their own food, even if it is their Thanksgiving turkey. Nope, I let Butterball do all the hard work for me.

The plaintiff in Willis v. Wal-Mart Stores, Inc., — F. Supp. 2d —, No. 1-09-0095, 2011 WL 4449647 (M.D. Tenn. Sept. 26, 2011), however, is not like me. Apparently, he liked to go out into the pre-dawn wilderness and bring home the bacon. Or turkey. Or venison. Or whatever he was hunting when on November 26, 2008, the tree stand he was sitting in collapsed and he fell to the ground.

On November 24, 2009, he filed a complaint against Wal-Mart, which sold the tree stand, and John Doe manufacturer, alleging tortious misrepresentation, defective condition, negligence, breach of warranties, failure to instruct, strict liability, failure to inspect, and failure to warn. A few months later the complaint was amended to add defendant Hunter’s View, Ltd. as the named manufacturer. On October 27, 2010, the plaintiffs were allowed to amend their complaint a second time, adding Ameristep Corporation and B&B Outdoors, Inc. as manufacturers of the tree stand. Eventually, the plaintiffs admitted that Hunter’s View did not manufacture the stand.

The plaintiffs claim at one point their counsel contacted Wal-Mart in an attempt to determine the identity of the manufacturer, but Wal-Mart didn’t cooperate. The plaintiffs did an Internet search and found Ameristep. Eventually, the company did provide five names of tree stand manufacturers sold at the applicable time, of which Ameristep was one.

Both Ameristep and B&B filed summary judgment motions, alleging that the case against them was barred by Tennessee’s one year statute of limitations and arguing that the plaintiffs could have determined the correct manufacturer within the statute’s time frame.

As the Court notes, “under federal law, the statute [of limitations] begins to run when plaintiffs knew or should have known of the injury which forms the basis of their claims.” However, as the parties acknowledged in this case, the discovery rule applies to the discovery of injuries. What is less certain is whether or not the discovery rule applies to a plaintiff’s knowledge of the identity of the proper defendant, because a split of authority exists on this very point.

After considering two separate lines of cases, the Court in this case held that the discovery rule applies only to the discovery of injuries, not the discovery of the proper defendant’s identity. Therefore, “absent fraudulent concealment or misrepresentation . . . the statute of limitations began to run on Plaintiffs’ claims when Plaintiffs discovered their injury, not when Plaintiffs correctly identified the manufacturer of the product.” The Court also held that the plaintiffs had a duty to investigate more diligently the identity of the defendant, and failed to do so. Based on this reasoning, the summary judgment motion of the two manufacturers was granted.